R v Stephenson

[1992] QCA 487

[1992] QCA 487

COURT OF APPEAL

DAVIES JA
DERRINGTON J
de JERSEY J

CA No 252 of 1992

THE QUEEN

v.

STEPHENSON, Ian Campbell  Applicant

BRISBANE

DATE 12/11/92

JUDGMENT

DERRINGTON J:  About the end of 1982 and in the early part of 1983 the appellant received some $30,000 in rental from a development project conducted by the complainant company of which he was one of the four directors.  He was the only resident director in Queensland and had the control of the organisation and management of its affairs here.  The project was the development of a shopping complex in respect of which a fairly substantial amount of money had to be expended, and rents were received by him once the complex was let.  It is the sum of about $30,000 from those rentals as to which he is charged.

With the exception of one of the other directors, all the directors of the complainant company had in the past been involved together in other developments in which the appellant had contributed substantial activity and in respect of some of these he had received moneys in a somewhat similar fashion.  In respect of two of those projects, there is evidence that, having collected some income on behalf of the identities which he represented, he had banked some cheques received by him into his own account for the purpose of reimbursing himself against expenses and some claim for commission for himself.  However, the evidence clearly shows that on each of those occasions he was expressly authorised to do that though, it must be said, the evidence does not exactly when the authorisation took place.  However, it was certainly not demonstrated that the authorisation was ex post facto.

It is because of that prior practice in respect of comparatively small sums that the appellant argues here that in respect of the sum of $30,000, which he conceded having received on behalf of the complainant company, he claims that the Crown has not established beyond reasonable doubt that he did not apply those funds honestly and under an arrangement similar to that which had gone before in respect of the earlier projects.  In other words, he relies upon the proposition that the Crown has failed to prove its case in failing to prove that his conduct in appropriating to his own bank account this particular sum he was not acting in an honest way following the same arrangements that had gone before.

The answer to this is very simple.  Apart from the very substantial difference between the amount involved on this occasion and that in respect of the prior occasions to which he refers, it is manifest on the evidence that the jury was entitled to have regard to his statements made to a fellow director and to a lady who was sent by the complainant company to Brisbane to discuss the matter with him in which he inferred in respect of each of those occasions that the money had indeed been appropriated by him and that except in respect of a sum which would not have exceeded $10,000 he was not able to account for his appropriating it by reference to any claim for reimbursement for expenses or commission.

In addition to that, there is evidence that he produced a reconciliation statement to the lady referred to in which he set out the receipts which he acknowledged and the amounts which he appears to have claimed and that made it quite clear that the amount which he was claiming amounted to no more than about $10,000, as I have indicated.

The existence of that reconciliation statement and the message which it obviously delivers is clear enough to establish that the full sum of $30,000 could not nearly be accounted for by these matters which are raised on his behalf.  But in addition to that, as I have said, the implications arising from his answers to the questions put to him by his fellow director and by the lady, demonstrate that he was not at any stage claiming that he was justified in putting that sum to his own use by any reference to reimbursement for expenses or commission.

Indeed when the question of repayment was made, at no stage did he suggest that he was free of any obligation to repay.  He only indicated that he was unable to do so.  Again in another part of those conversations he indicated further that his other directors were indeed indebted to him in some way in respect of past projects and that to some extent this was a form of setting off; but, of course, he could not possibly justify that by reference to his appropriations, without authority, of these sums to his own account.  He was not authorised to do so.

There is strong evidence to the effect that he had been told at the commencement of the project that all the receipts were to be sent to the Melbourne office of the company to be banked in a trust account to the account of the company, and later into the bank account of the company, and that all expenses would be paid by the company in Melbourne.

There is also evidence directly in point demonstrating that other very substantial amounts of money were paid by the company in this fashion by way of payment of expenses incurred by him for the company in Brisbane and also by way of payments of commission to him for work which he had undertaken in respect of this project.

All of these matters together would have justified the jury in being satisfied beyond reasonable doubt as to the dishonesty of his purpose in appropriating these cheques to his account and it would have been surprising if the jury had failed to be satisfied of his guilt beyond reasonable doubt.  One might think that the only way in which they could have come to a contrary conclusion would have been by way of confusion.  However, there is nothing further that need be said about that.

For these reasons there is no satisfactory argument supporting the appeal.  The evidence is surely sufficient to justify the conviction and the appeal should be dismissed.

DAVIES JA:  I agree.

de JERSEY J:  I agree.

DAVIES JA:  The appeal is, therefore, dismissed.  No orders.